Patient Self-Determination Act Lawyers

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 What Is a Health Care Advance Directive?

Health care advance directives are tools that a person can use for health care decisions when they are incapacitated and cannot speak for themselves. These directives include the living will and the health care power of attorney (HCPA). A person can prepare these documents, or have an attorney prepare them. They give notice to family members and healthcare providers of the care a person does and does not want in the event they cannot express their wishes.

A living will is a document that informs healthcare providers of a person’s wishes regarding their care in the event that a person is no longer able to make decisions and communicate them to providers.

This can relieve a person’s loved ones and relatives from being asked to make difficult choices about a person’s care. Family members may be called on to make decisions about a person’s healthcare treatment if a person is incapacitated. A living will reduces the chances of confusion or disagreements between family members or between family members and a healthcare facility about what is in a person’s best interest in a medical situation.

Each state has a living will form or specific laws that prescribe about what should be included in a living will. So, a person wants to consult their state’s requirements to ensure that their living will is enforceable. If a person spends lots of time in other states, they might even want to make sure that their living will is enforceable in those states as well or have a living will for each state in which a person spends a significant amount of time.

Keep in mind that a living will is different from a standard will and a person needs both. A standard will disposes of a person’s assets after their death. So a living will is not a substitute for a testamentary will.

A health care power of attorney gives another person the authority to make decisions about a person’s healthcare in the event that the person is incapacitated and cannot communicate their preferences. It is important for a person to appoint a person they trust with their health care power of attorney as that person may be charged with making life-and-death decisions on the person’s behalf.

However, end-of-life decisions are not the only kind of decisions that an HCPA should address. It can also address such topics as the following:

  • When a person should be hospitalized;
  • What type of medical treatment the person wants to receive even if the person is not in at the end of their life;
  • Whether a person wants psychiatric treatment and if so, what type;
  • Whether a person would want nursing home care or homestay care;
  • Whether a person wants to donate their organs.

As an example, an HCPA could inform a person’s doctors that if the person cannot breathe on their own, then they do not want to be kept alive through artificial means of providing oxygen. Or, if a person is put on oxygen for surgery and then the doctors decide the person would not survive having the oxygen removed, the HCPA tells the doctors to remove the oxygen and allow the person to pass away.

In addition to such specific directives as these, a person may include in their HCPA more general statements about their religious affiliation and beliefs, morals, and basic ethical values.

Although an HCPA is easy to put in place, again, as with living wills, states have different rules and forms; so a person needs to consult the law of the state in which they live or an experienced trust and estate lawyer who would be familiar with state law and know how to draft an effective HCPA.

In some states, an HCPA is referred to as a “medical power of attorney.” Whatever it is called, it only becomes effective when a doctor deems the person not competent to make their own decisions about their medical care.

What Is the Patient Self-Determination Act?

The Patient Self-Determination Act (PSDA) is a federal law that applies to health care facilities, such as hospitals, home health agencies, nursing homes, and health maintenance organizations (HMOs). Health care institutions that receive reimbursement for the care they provide from Medicare and Medicaid are routinely required to provide a patient with information on advance directives when the patient is admitted to the facility.

The PSDA mainly seeks to address the increasing costs of care that is provided to people at the end of their lives. Medical facilities may provide care that sustains a person’s life when the patient may not wish to be kept alive by the type of care provided or have their life sustained. This costs the U.S. healthcare system millions of dollars for care that patients may not have wanted.

What Is Required under the PSDA?

The PSDA requires health care institutions, such as hospitals, to take the four following steps:

  • When a person is admitted to a health care facility, such as a hospital, the facility must give the person a written summary of:
    • Its policies regarding the recognition of advance directives;
    • The rights that a person has concerning their health care decision-making;
  • The health care facility must ask the person if they have an advance directive and must record the person’s answer to this question in the person’s medical record;
  • The facility must educate both its staff and the community about advance directives;
  • The facility must not discriminate against patients on the basis of whether they have an advance directive.

This legislation ensures that the medical staff providing care respects a patient’s rights and wishes regarding their medical treatment. The PSDA is intended to educate people and increase knowledge among the public of how the medical system operates and the options available for treatment. People are encouraged to discuss these topics with a primary care physician rather than waiting until someone is critically ill.

The main point is that a person, as a medical patient, should ideally be aware of all of their rights in connection with medical treatment and their options surrounding medical treatment. Healthcare professionals should respect a person’s wishes, and in order to ensure that, a person should make their wishes known in writing before they become incapacitated.

As mentioned above, the PSDA benefits close family members and other relatives. Having advanced directives spares family members from having to make decisions for which they may have no guidance or that may not accord with the wishes of the patient.

Of course, medical professionals also benefit from the PSDA, because they are fully informed about the type of care their patients wish to have. They can deliver what their patients want and not force unwanted care on them. They are not left to guess about how their patients want to proceed.

Do I Need a Lawyer for My PSDA Issue?

An experienced insurance lawyer can inform you of your rights under the PSDA and can prepare advance health care directives, i.e., a living will and a health care power of attorney, for you. A lawyer can ensure that your wishes are expressed as you want.

Your lawyer will know the specific requirements for advance directives in your state and can tailor your directives to fully comply with your state’s laws. You can then provide these documents to any health care facility in which you receive treatment, so that your wishes are respected in the event it becomes necessary.


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